Crawford v. Burkey

Appellate Division of the Supreme Court of New York

Crawford v. Burkey

124 A.D.3d 1184, 2 N.Y.S.3d 682

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 29, 2015

Docket518631

StatusPublished

Cited by1 cases

This text of 124 A.D.3d 1184 (Crawford v. Burkey) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Crawford v. Burkey, 124 A.D.3d 1184, 2 N.Y.S.3d 682 (N.Y. Ct. App. 2015).

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Opinion

Rose, J.

Appeal from an order of the Supreme Court (Clark, J.), entered December 19, 2013 in Washington County, which denied defendant’s motion to strike plaintiffs complaint.

Plaintiff commenced this action to recover for contributions he allegedly made to the improvement of a residence that is titled in defendant’s name. * Following plaintiff’s failure to comply with an order compelling him to disclose his tax returns *1185 for the years 2002 through 2009, Supreme Court issued a conditional order requiring him to produce the tax returns within 60 days or his complaint would be stricken. Plaintiff timely responded to the demand with copies of his returns for 2002 through 2008, but he did not produce a tax return for 2009. Defendant moved to strike the complaint, and plaintiff opposed the motion with an affidavit attesting that he did not produce returns for 2009 because he failed to file them that year. Holding that plaintiff was not required to produce documents that do not exist, Supreme Court denied the motion. Defendant appeals.

To avoid the consequences of the conditional order, plaintiff was required to provide a reasonable excuse for the failure to comply and an affidavit of merit (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]; Willis v Keeler Motor Car Co., 121 AD3d 1373, 1374 [2014]; Cochran v Cayuga Med. Ctr. At Ithaca, 90 AD3d 1227, 1227 [2011]). Here, plaintiff satisfied the reasonable excuse requirement, inasmuch as “a party cannot be compelled to produce documents that do not exist” (Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [2012]). Further, despite defendant’s contention that plaintiff cannot demonstrate potential merit because the minimal income reported in the tax returns provided was not adequate to support his allegation in the complaint that he contributed $70,000 to the improvement of the residence, plaintiff established that his claim is based, at least in part, on labor and material that he contributed to the residence. Accordingly, we decline to disturb Supreme Court’s exercise of its discretion in denying the motion to strike the complaint. Defendant’s remaining contentions have been considered and found to be unavailing.

Peters, EJ., Lahtinen, Garry and Lynch, JJ., concur.

Ordered that the order is affirmed, with costs.

*

The facts are more fully set forth in our prior decision in this action (93 AD3d 1134 [2012]).

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Rose, J.

Appeal from an order of the Supreme Court (Clark, J.), entered December 19, 2013 in Washington County, which denied defendant’s motion to strike plaintiffs complaint.

Plaintiff commenced this action to recover for contributions he allegedly made to the improvement of a residence that is titled in defendant’s name. * Following plaintiff’s failure to comply with an order compelling him to disclose his tax returns *1185 for the years 2002 through 2009, Supreme Court issued a conditional order requiring him to produce the tax returns within 60 days or his complaint would be stricken. Plaintiff timely responded to the demand with copies of his returns for 2002 through 2008, but he did not produce a tax return for 2009. Defendant moved to strike the complaint, and plaintiff opposed the motion with an affidavit attesting that he did not produce returns for 2009 because he failed to file them that year. Holding that plaintiff was not required to produce documents that do not exist, Supreme Court denied the motion. Defendant appeals.

To avoid the consequences of the conditional order, plaintiff was required to provide a reasonable excuse for the failure to comply and an affidavit of merit (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]; Willis v Keeler Motor Car Co., 121 AD3d 1373, 1374 [2014]; Cochran v Cayuga Med. Ctr. At Ithaca, 90 AD3d 1227, 1227 [2011]). Here, plaintiff satisfied the reasonable excuse requirement, inasmuch as “a party cannot be compelled to produce documents that do not exist” (Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d 1030, 1032 [2012]). Further, despite defendant’s contention that plaintiff cannot demonstrate potential merit because the minimal income reported in the tax returns provided was not adequate to support his allegation in the complaint that he contributed $70,000 to the improvement of the residence, plaintiff established that his claim is based, at least in part, on labor and material that he contributed to the residence. Accordingly, we decline to disturb Supreme Court’s exercise of its discretion in denying the motion to strike the complaint. Defendant’s remaining contentions have been considered and found to be unavailing.

Peters, EJ., Lahtinen, Garry and Lynch, JJ., concur.

Ordered that the order is affirmed, with costs.

*

The facts are more fully set forth in our prior decision in this action (93 AD3d 1134 [2012]).

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124 A.D.3d 1184, 2 N.Y.S.3d 682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/crawford-v-burkey-nyappdiv-2015.

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